ML20093M184
| ML20093M184 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/18/1984 |
| From: | Jordan W, Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#484-593 SP, NUDOCS 8410190451 | |
| Download: ML20093M184 (13) | |
Text
hf RELATED CORRESPONDENK 1
UCS - October 18, 1984 UNITED STATES OF AMERICA DOCHE[ED U3flRu NUCLEAR REGULATORY COMMISSION BEFO'RETHEATOMICSAFETYANDLICENSING' hag
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In the Matter of
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Doc k e t'No'. 5 50. -%, Sf.
89 METROPOLITAN EDISON COMPANY
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(Restart-Remand on
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Management)
-(Three Mile Island Nuclear
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Station, Unit No. 1)
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UCS' MOTION TO COMPEL GPU RESPONSE TO UCS' SIXTH SET OP INTERROGATORIES AND DOCUMENT REQUESTS Pursuant to 10 C.F.R.
S 2.740 (f), the Union of Concerned a
Scientists ("UCS") moves the Atomic Safety and Licensing Board to compel Licensee to respond in full to Interrogatories 6-1 through 6-8, as set out in UCS' -Sixth Set of Interrogatories and Document Requests, dated September 27, 1984.
Background
The int'errogatories for which UCS now seeks responses fall into three categories.
Interrogatories 6-1 and 6-2 seek specific information concerning the Reconstituted OARP Committee's work since it prepared its Special Report.
Interrogatories 6-3 to 6-6 and 6-8 seek evaluations of training program personnel and specific information about the duties and activities of Mr.
Frederick, who was the Supervisor of Licensed Operator Training.
Interrogatory 6-7 seeks evaluations of one reactor operator, hDkkDO O 00 G._
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Interrogatories 6-1 and 6-2 The text of Interrogatories.6-1 and 6-2 follows:
6-l' Has the Reconstituted OARP Committee or any members thereof undertaken any analyses, or' investigations, gathered any furhter.information or done any further work.since the
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preparation of the Special-Report to prepare for the remanded r
proceedings?
If so, Describe specifically the nature of the analyses, a.
investigations, information gathering or other work.
F b.
Indentify the person (s) who performed the work.
c.
State when the work was performed.
d.
. Provide-all documentation of the work, including' notes, memoranda, or any other documents.
e.
If further documents were reviewed, identify each and state the purpose for which it was reviewed.
6-2.IIas the ROARP Committee or any members 1thereof, since the preparation of the Special Report, interviewed or contacted individuals beyond those listed in the Appendix to the Report?
If so:
a.
Identify each person interviewed or contacted.
b.
State the purpose of the contact.
c.
State the topic and substance of the contact.
d.
State when the interview or contact took place.
e.
State who in the ROARP Committee conducted the interview or contact.
f.
Provide all documentation'of th'e interview or contact, including the notes of all parties and any other documentation In essence, these interrogatories seek information concerning the work that the Committee has done, the documents it has reviewed, and the individuals whom it has contacted in-preparing for the remanded proceeding on training.
Licensee objects to both of these interrogatories on the ground that the information sought is beyond the scope of permissible discovery of expert witnesses o': constitutes privileged work product material.
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- These objections are baseless.
UCS simply seeks to.know the work done and thefinformation gathered by the. Committee in the course of preparing for.its testimony in the remanded proceeding on-training. 'Nothing is more basic to UCS' preparation for this litigation, nor more clearly discoverable-Rule: 26 (b) (4 )-
Licensee' asserts that the information sought is beyond the scope of permissible discovery of expert witnesses as established i
by ' Fed.
R.
Civ.
P.
26 (b) ( 4 ).
Licensee does not explain the basis-for that assertion.
The rule states, in relevant part,
( A) ( i)
A party may through interrogatories require any other party to identify each person whom the other party expects to call as-an expert witness at trial, to' state the subject matter on which the expert is expected to testify, and to state the substance of'the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.
(ii)
Upon-motion, the court may order further discovery by other means, subject to such restrictions as to scope
. as the court may deem appropriate.
There is no Commission discovery rule on this point.
Accordingly, the Licensing Board, in its most recent decisions, has held that, "In considering whether to follow the federal guidance, a Board should determine whether the situation'before it is analagous to the situation the federal ruJe governs and whether the policy rationale underlying the federal rule is persuasive."
Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1 and 2), LBP-83-27A, 17 N.R.C.
- 971, 978 (1983).
The extent to which the federal rule governs depends upon the facts of-each case, as does the application of
i
.. theErule ifLit does govern.
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-17, 17 N.R.C.
490, 497 (1983); Carolina Power'and Light Co.,
17 N.R.C. at 979.
As reflected in the notes of;the Advisory. Committee on Rules, wh'ich follow Rule 26,. the purpose of the protections af forded to expert witnesses in the discovery process is to prevent abuses, part'icularly attempts by discoveringLparties to develop their own direct cases through an opponent's experts.
That is not what-UCS seeks through these interrogatories.
UCS has not posed substantive questions here that would bring the witnesses'-
expertise to bear on this litigation on any issue or in any way that is different from Licensee's reliance upon that expertise.
Rather, UCS seeks the work that the witnesses have performed and the conversations that the witnesses have had in preparing their testimony, and documentation of that work and those conversations.
Under the language of the rule, UCS may seek "the substance of the facts and opinions to which the expert is expected toL testify and a summary of the grounds for each opinion."
The responses sought by UCS would provide precisely that information.
Moreover, to the extent, if any, that UCS' request is broader than that specific language, it is well within the appropriate scope of discovery that may be ordered by a court and should be ordered by the Board.
A party need make only a minimal showing of good cause in order to justify discovery beyond that specifically provided for by the rule.
Henlopen Hotel Corp. v.
Aetna Ins. Co.,
33 F.R.D.
306 (D.,
308 Del. 1963).
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- in essence, the bases for-the witnesses' UCS seeks,
~ testimony, including particularly the analyses that'the witnesses have performed and the ~ materials that they have reviewed'in order to prepare that testimony.
This is' essential to permit UCS to evaluate and probe their testimony.
This is also considerably less intrusive than the' sort of information that may be discovered.
See, e.g., Carter-Wallace, Inc'. v. Hartz-Mountain Industries, _Inc.,
553 F. Supp. 45 (S. D. N. Y. 1982).
Accordingly, Rulef 26 (b) (4) ' does' not permit Licensee to avoid responding to Interrogatories 6-1 or 6-2.
Work Product Licensee also objects to these Interrogatories'on the' ground that the information that Licensee would provide is privileged as attorney work product.
UCS does not seek information that falls under this privilege.
However, these interrogatories appear to call for little, if any, such material.
Most oral and written advice by counsel would presumably be protected, subject to some exceptions.
It is clear, however, that reports by the experts themselves are not protected by the work product privilege.
Beverage Marketing Corp. v. Ogilvy &
Mather Direct Response, Inc., 563 F. Supp. 1013 (S. D. N. Y. 1983).
Since Licensee has failed here even to indicate what sort of documents or responses it considers to be protected by the work product privilege, UCS.is at'a serious disadvantage in determining the legitimacy of Licensee's claim or in moving to
- compel responces.
Based upon. discussion with Licensee's counsel, however, UCS understands that the objection may extend w
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-toEfactual; documents provided:to theJwitnesses by counsel or at x-the direction of counsel, but:on wh'ich'the witnesses:do not
.specifically rely in: their testimony.
To:che extentLthat this understanding is accurate, the-w 1 responses are'not. privileged.
UCS is.-entitled:to know both'what-
_ the ! witnesses : rely upon fin their testimony and the materialsithat they have: reviewed,:but-for some reason, chosen not to reference i.
orJrely.upon.- These materials, and the-reasons that the-witnesses rejected them,.are part of the bases for'the witnesses'-
s ultimate direct testimony.
As such,.they are not privileged.'
Moreover, they are not: comparable to materials that may be ~used on cross-examination, which would normally be privileged because their release would reveal the attorney's legal theories and thought processes.
't.
Beyond these materials, UCS is unable to evaluate Licensee's claims because Licensee has failed to provide sufficient information.
j Accordingly,.UCS moves that the Board compel Licensee to respond to Interrogatories 6-1 and 6-2 with respect to all information provided to the witnesses by counsel or at the direction of counsel if the material itself (as opposed to the fact of its identification or provision by counsel) is not privileged.
In addition, UCS moves that the Board compel
- Licensee to identify all materials for which it claims the work 4
product privilege and to state the' justification in each case.
c
. -Interrogatories-6-3 to-6-6 and 6-8 The language-of Interrogatories 6-3'to'6-6 and 6-8 follows:
6-3.
Provide all evaluations of Mr. Frederick since 1981,
. including but-not limited-to evaluations by Mssrs. Long, Newton, Knief and'Ross.
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6-4.
Provide all evaluations of Mr. Long since 1981.
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6-5.
Provide all evaluations of Mr. Newton 'since 1981.
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6-6.
Provide all evaluations'of.the current GPU licensed I
' operator instructors since 1981.
j 6-8.
State.specifically what Mr. Frederick's duties were during his assignment to_the training program, when they began and when they terminated.
State whether Mr. Frederick prepared and/or approved any examinations and, if so, identify.
Licensee objects to responding to these interrogatories on the ground that TMIA, not UCS, is the lead intervenor with respect to the relevant issues.
This is incorrect, at least with respect to information concerning Mr. Frederick.
It is also irrelevant.
UCS is the lead intervenor with respect to the following question:
Do the NRC and Company examinations reliably measure the operator's ability to safely operate the plant?
As Supervisor of Licensed Operator Training, Mr. Frederick either prepared or reviewed most, if not all, recent GPU examinations, and he was involved in the grading and evaluation of candidates based upon the examinations.
He has recently been removed from that position.
In order to address the adequacy of the i
examinations, UCS is entitled to pursue the qualifications and activities of the individual who appears to have the most direct and substantial involvement in their preparation and implementation.
That is the subject of Interrogatories 6-3 and 6-8.
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h Interrogatories 6-4 tof6-6; request.evaluationsJof1 training
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1 department;personn'el'and. licensed operator instructors..-This
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$1'nformation.'is.relevantfto the adequacy:of-the' examinations, as'
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in pit is;also vital'to the issues ~with respect.to Ji
? discussed labove.
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- which TMIA ~is lead intervenor..
-Licensee's1 objection islthat UCS'is not lead intervenor with I
- respect to'th'ese matters..lAs previouslyLdiscussed, that"is, inaccurate'.
More = im'portant,.'it does not justify failure to respond.- Thereiis no Commission rule,-nor is there any directive:
from the Board'in this case prohibiting discovery._by parties
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other ~ than the -lead intervenors on particular issues, particularly where the ' issues are so closely related as these.
UCS has consulted with TMIA with respect to its ability to
-pursue these issues'in recent weeks and its view of;the need-for the information in question.
As the Board is aware, TMIA has been either taking or preparing for. depositions with respect to the Dieck' amp Mailgram issue for many weeks'.
TMIA has authorize'd UCS to represent that it has not had time during that period to pursue adequately'its discovery on the training issues.- UCS'has discussed these particular matters with-TMIA, which. agrees that the information is necessary for its own preparation as well as UCS' preparation.
Accordingly, UCS is authorized to represent
~that'TMIA joins in;this motion.
~
. Interrogatory 6 Interrogatory 6-7 states, 6-7.
Provide all evaluations. of Mr. Olive since 1981, including'but not_ limited to evaluations by Mssrs. Long,1 Newton,.
Knief, Ross'andTFrederick.
1
. - Licensee objects.tx) providing a completeyresponse to this interrogatory'on the ground that performance reviews are highly _
confidential.
Licensee cites no basis for this objection, and there is.none.
UCS does not'know what Mr. Olive's performance reviews contain, b0t if the reviews are effective, the information is personal in1 nature and it may be highly critical.
Without--in any way characterizing Mr. Olive, UCS notes that such highly personal information as an-individual's unstable mental condition or his dishonesty or evasiveness would be crucial to an evaluation of the adequacy of the Licensee's training program.
If the Licensee is recruiting and passing through its program individuals with these types of. problem, the Licensee's program is seriously defective.
UCS and the Board must know that information.
Conclusion For these reasons, Licensee's objections to UCS' Sixth Set of
_ Interrogatories are baseless.
UCS urges the Board to compel the Licensee to respond, as described above.
In light of the lateness of the hour, UCS also moves that the Board establish a n'
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n for Licensee,to hand deliver-1 deadline.'of' Monday, October'22, 1984-
- its: response'to'UCS.
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'.Respectf ully ~ submitted,.
(Q/,Sh-j,,'.W
-Ellyn R. Weiss v-
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h' William S.pdordan~;,-III 3,
HARMON,' WEISS,-& JORDAN 2 001' S - S tree t',
N.W.
Suite 430-Washington, D.C.
20009 (202)~328-3500, Dated:- October:18, 1984 4
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' October 18, 1984 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In'the Matter of-
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METROPOLITAN EDISON COMPANY
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Docket No. 50-289.
)
(Restart Remand on
.(Three Mile -Island Nuclear
).
Management)~
Station, Unit No. 1)
)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the UNION OF CONCERNED SCIENTISTS' MOTION TO COMPEL GPU RESPONSE TO UCS' SIXTH SET OF_-
INTTRROGATORIES AND DOCUMENT REQUESTS, October 18, 1984, were served on the following by deposit in The United States mail, first class, postage prepaid, on October 18, 1984.
William S.
Jordan, III
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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC ~ SAFETY AND LICENSING BOARD
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.In'the Matter of
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. METROPOLITAN. EDISON' COMPANY
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Docket No. 50-289'
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(Restart Remand on
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Management) s; (Three' Mile Island Nuclear Stationi Unit Th). 1)
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SERVICE LIST p
, Administrative ~ Judge
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- Gery J..Edles, Chairman Jack R..Goldberg, Esq.
SAtomic Safety & Licensing Appeal Bd.
Office of tne: Executive _ Legal Dir.
- -U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory. Commission
- Wasnington, D.C.
20555 Washington, D.C.
20555 Administrative Judge Jonn H.
Buck Ernest L.
Blake, Jr. Esquire Atomic Safety & Licensing Appeal Od.
Shaw, Pittman, Potts & Trowbridge
- U.S. Nuclear Regulatory Commission 1800 M Street, N.W.
Wasnington, D.C.
20555 Washington, D.C.
20036 Administrative Judge
- Christine N. Kohl Mr. Louise Bradford
. Atomic Safety & Licensing Appeal Bd.
TMI Alert U.S.
Nuclear Regulatory Commission 1011 Green Street Wasnington, D.C.
20555 Harrisburg, PA 17102 Administrative Judge Ivan W.
Smith, Chairman Joanne Doroshaw, Esquire Atomic Safety & Licensing Board The Christic Institute U.S. Nuclear Regulatory Commission 1324 North Capitol Street Washington, D.C.
20555 Washington, D.C.
20002 Administrative Judge Sheldon J. Wolfe Mr. and Mrs. Norman Aamodt Atomic Safety & Licensing Appeal Bd.
R.D.
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-U.S.
Nuclear Regulatory Commission Coatesville, PA 19320 Washington, D.C.
20555 Administrative Judge Lynne Bernabei, Esq.
- Gustave A.
Linenberger, Jr.
Government Accountability Project Atomic Safety & Licensing Board 1555 Connecticut Ave.
!U.S. Nuclear Regulatory Commission Washington, D.C.
20009 Washington, D.C.
20555
' Docketing and-Service Section Micnael F.
McBride, Esq.
Office of the' Secretary LeBoeuf, Lamb, Leiby & MacRae U '. S. Nuclear Regulatory Commission 1333 New Hampshire Ave, N.W._41100
~ Washington, D.C.
20555-Washington, D.C.
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Thomas Y.: Au, _ E sq..
_10ffice:of Chief Counsel
- Department.of Environmental Resources 5051 Executive' Houses
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